PECKHAM v. BOSTON HERALD, INC., et al.

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Civil action
commenced in the Superior Court Department on July 8, 1992.

The case was heard by Barbara
J. Rouse, J., on a motion for summary judgment.

Juliane Balliro for
the plaintiff.

Elizabeth A. Ritvo
for the defendant.

ARMSTRONG, J.

The plaintiff, John M.
Peckham, III, appeals from a judgment for the defendant
newspaper, the Boston Herald (Herald), on Peckham’s tort claim of
public disclosure of private facts under G. L. c. 214,
Sect. 1B. The judge correctly allowed the Herald’s motion
for summary judgment, although we modify to some extent the
rationale relied on by the judge.

The material facts of the
case are not disputed. Peckham was a businessman of stature in
the Boston community — a leading realtor [2]and the president
of at least two real estate brokerages, the Peckham Boston
Advisory Company and the Investment Network of America. In 1989,
Peckham received the Realtor of the Year award from the Greater
Boston Real Estate Board. Besides being a business leader,
Peckham was a recognized civic leader, active in "The Ten
Club," a social and philanthropic organization composed of
persons who, like himself, were former recipients of "The
Ten Outstanding Young Leaders Award" given annually by the
Greater Boston Junior Chamber of Commerce.

In early 1989, Peckham
hired Louise Gendron as a real estate broker for one of his
companies. The two worked in the same office and became involved
in an intimate relationship. In the summer of 1989, Gendron told
Peckham that she was pregnant with his child. He did not
acknowledge paternity and did not reveal Gendron’s announcement
except to his daughter Holly and to Ronnie Botkin, a colleague
and close friend. In September of 1989, sometime after Gendron
had ended her relationship with Peckham, he authorized the
termination of Gendron’s employment.

On November 20, 1989,
Gendron gave birth to a son. Peckham had not agreed to pay
medical expenses or child support and insisted on genetic testing
to determine the identity of the father. In the following month
Gendron filed a paternity action against Peckham in the Probate
and Family Court. Around that time, Peckham told his daughter
Holly and Michael Pearlman, a close friend, about the existence
of the paternity suit. At deposition, Botkin also testified to
being aware of the paternity action.

On January 10, 1990, a
columnist for the Boston Herald, Norma Nathan, contacted Mr.
Franklin Levy, Gendron’s attorney. Without revealing how she
found out about the paternity suit, Nathan asked Levy about it.
In their brief conversation, Levy confirmed the existence of the
action and discussed the details of an affidavit he was preparing
to file on Gendron’s behalf to support the allegations of her
complaint. [3]On January 11, 1990, the
Herald published in its daily newspaper the following story as
part of Nathan’s social/gossip column called "The Eye":

"Oh baby!
Business and pleasure just don’t mix

"Peckham’s bad
boy: Bulletin, bulletin, bulletin!

"Bigtime Boston
real estate dealer Jack Peckham (that’s John M. Peckham III)
1989 Realtor of the Year and one of the city’s 1989 10
Outstanding Young Leaders, has a brand new title: Daddy.

"It’s true! It’s
true!

"Peckham, 56,
president of Peckham Boston, has been taken to court on a
paternity suit. He’s the father of 2-month-old John Richard
Gendron, alleges Louise Gendron, who once worked for him.

"In his answer,
the twice-married, twice-divorced Peckham says he doesn’t
know that this is his baby.

"Her lawyer —
Franklin Levy of Boston — says Gendron was hired as a real
estate broker by Jack. She lived on the 18th floor of his
Charles River Park building. He lived on the 22nd. Eye say!
Did they compromise and meet on the 20th? Anyway, they dated.
They traveled.

"’He showed her a
great time until she got pregnant,’ said Levy. ‘Then he fired
her and refuses to acknowledge the baby.’

"The jobless
Gendron says that if she doesn’t have help, she’ll go on
welfare. She’s caring for the baby with help from her family.

"His lawyer is
Paul Kane of Boston, bigtime divorce lawyer.

"’No comment,’
says Kane. Honestly, no one tells a gossip anything!"

In May of 1990, after
receiving the results of genetic testing done in connection with
the paternity suit, Peckham acknowledged that he fathered
Gendron’s son and has since not concealed that fact.

In July, 1992, Peckham
filed suit against Levy and Gendron, and in September, 1994,
amended his complaint to add a claim against the Herald,[4]for the public
disclosure of private facts under G. L. c. 214,
Sect. 1B. [5]The Superior Court granted
the Herald’s June, 1997, motion for summary judgment on the basis
that Peckham’s revelation of the existence and details of the
paternity action to his daughter, Pearlman, and Botkin left these
facts no longer private.

The Massachusetts
appellate courts have had no occasion to consider the extent to
which one forfeits the privacy of personal facts by discussing
them with one’s close friends and family. Reported cases have
dealt primarily with broad-based disclosures, whereby information
that is a matter of public record or is otherwise made open to
the public view is generally deemed no longer private. See Jones
v. Taibbi, 400 Mass. 786, 801 (1987); Globe Newspaper
Co. v. Police Commr. of Boston, 419 Mass. 852, 860
(1995), citing Restatement (Second) of Torts Sect. 652D, at
385 (1977); Cefalu v. Globe Newspaper Co., 8 Mass.
App. Ct. 71, 77 (1979), appeal dismissed and cert. denied, 444
U.S. 1060 (1980). Perhaps most germane to the present case is
this observation from Schlesinger v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 409 Mass. 514, 521 (1991):
"[A] person may relinquish a privacy right by engaging in
certain activities, or by placing himself in certain contexts
where his legitimate expectation of privacy is reduced."
Where one discusses sensitive personal matters with a close
relative or trusted friend, one can often legitimately expect
that these matters will remain confidential. See Restatement
(Second) of Torts Sect. 652D comment b, at 386 (1977)
("Every individual has some phases of his life and his
activities and some facts about himself that he does not expose
to the public eye, but keeps entirely to himself or at most
reveals only to his family or to close personal friends").
It is not unreasonable to argue that it should be deemed a
factual question whether a given person, due to the particular
circumstances and manner of disclosure, has relinquished an
expectation of privacy. On this record, which provides no detail
about the place, manner, and confidentiality of the discussions
between Peckham and the others, viewed in the light most
favorable to him, there may thus be a genuine issue of material
fact whether Peckham compromised his privacy simply by discussing
the paternity suit with his daughter and two close friends. That
issue we need not and do not resolve.

The Herald argues, as it
did below, that even if the above information were private, its
public disclosure was not actionable because, as a matter of
common law and the First Amendment, the information was a matter
of "legitimate public concern" that could not be the
subject of an invasion of privacy action. [6]See George W.
Prescott Publishing Co. v. Register of Probate for Norfolk
County, 395 Mass. 274, 278 (1985); Hastings & Sons
Publishing Co. v. City Treasurer of Lynn, 374 Mass.
812, 818 (1978); Jones v. Taibbi, 400 Mass. at 801;
Restatement (Second) of Torts Sect. 652D & comment d
(1977). See also Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 492 (1975); Smith v. Daily Mail
Publishing Co., 443 U.S. 97, 103 (1979); The Florida Star
v. B.J.F., 491 U.S. 524, 533 (1989). Although the
boundaries of "legitimate public concern" have not been
comprehensively explored in the Massachusetts case law, the
Restatement (Second) of Torts provides the following relevant
discussion in comments g and h to Sect. 652D, at 390-391:

"g. News.
Included within the scope of legitimate public concern are
matters of the kind customarily regarded as ‘news.’ To a
considerable extent, in accordance with the mores of the
community, the publishers and broadcasters have themselves
defined the term, [7][ ] as a
glance at any morning paper will confirm. Authorized
publicity includes publications concerning homicide and other
crimes, arrests, police raids, suicides, marriages and
divorces, accidents, fires, catastrophes of nature, a death
from the use of narcotics, a rare disease, the birth of a
child to a twelve-year-old girl, the reappearance of one
supposed to have been murdered years ago, a report to the
police concerning the escape of a wild animal and many other
similar matters of genuine, even if more or less deplorable,
popular appeal."

"h. Private
facts. . . . The extent of the authority to make public
private facts is not, however, unlimited. There may be some
intimate details of her life, such as sexual relations, which
even [a famous] actress is entitled to keep to herself. In
determining what is a matter of legitimate public interest,
account must be taken of the customs and conventions of the
community; and in the last analysis what is proper becomes a
matter of the community mores. The line is to be drawn when
the publicity ceases to be the giving of information to which
the public is entitled, and becomes a morbid and sensational
prying into private lives for its own sake, with which a
reasonable member of the public, with decent standards, would
say that he had no concern. . . ."

See Prosser &
Keeton, Torts Sect. 117, at 860-861 (5th ed. 1984).

The parties dispute the
propriety of deciding the question of newsworthiness on summary
judgment. The issue has not been explicitly addressed in the
Commonwealth. In Jones v. Taibbi, 400 Mass. at 801,
the question whether the plaintiff’s arrest was a matter of
legitimate public concern was treated as one of law and decided
on summary judgment. Decisions of other courts show a lack of
agreement as to whether newsworthiness should in a given case be
treated as a question of fact for the jury, see Virgil v. Time,
Inc., 527 F.2d 1122, 1130 & n.13 (9th Cir. 1975), cert.
denied, 425 U.S. 998 (1976); Veilleux v. National
Bdcst. Co., 8 F. Supp. 2d 23, 38 (D. Me. 1998), a question of
law for the judge, see Cinel v. Connick, 15 F.3d
1338, 1345-1346 (5th Cir.), cert. denied, 513 U.S. 868 (1994); Walker
v. Colorado Springs Sun, Inc., 188 Colo. 86, 101-102,
cert. denied sub nom. Wostendiek v. Walker, 423
U.S. 1025 (1975) (libel action); Barber v. Time, Inc.,
348 Mo. 1199, 1206-1207 (1942), or a mixed question of fact and
law, see Winstead v. Sweeney, 205 Mich. App. 664,
671-672 (1994). One factor supporting early disposition as a
matter of law is the importance of constitutional interests in
free speech and press that may be chilled if protracted
litigation is allowed to be the norm rather than the exception —
the same reason for which summary judgment is particularly
favored in the defamation context. See King v. Globe
Newspaper Co., 400 Mass. 705, 708 (1987), cert. denied, 485
U.S. 940, 962 (1988), and cases cited; Cefalu v. Globe
Newspaper Co., 8 Mass. App. Ct. at 74. This need may be
strongest where the tort of public disclosure is concerned,
because it involves concededly truthful rather than false
publication. See Romaine v. Kallinger, 109 N.J.
282, 298 (1988). Thus, we reject the view that the legitimacy of
public concern should always be treated as a question of fact, as
that view eschews the well-recognized gatekeeper function of the
judiciary in these cases. See New York Times Co. v. Sullivan,
376 U.S. 254, 285 (1964). It is the role of the court to
determine whether a jury question is presented, and here, where
the standard is founded on community mores, the question is
whether reasonable minds could differ as to how the community
would regard the publication at issue. See Gilbert v.Medical Economics Co., 665 F.2d 305, 309 (10th Cir. 1981).

In our view, bearing in
mind that the newsworthy category includes information that is of
"genuine, even if more or less deplorable, popular
appeal," Restatement (Second) of Torts Sect. 652D
comment g (1977), several factors combine so that reasonable
minds would agree on the newsworthiness, even if only marginal,
of the Herald article. First, Peckham himself was noteworthy both
as a prominent real estate professional and as a recognized civic
leader, and the circumstances of the paternity suit had a nexus
to both of these roles in the community. See Campbell v. Seabury
Press, 614 F.2d 395, 397 (5th Cir. 1980); Gilbert v. Medical
Economics Co., 665 F.2d at 308; Restatement (Second) of Torts
Sect. 652D comments e, f; Prosser & Keeton, Torts
Sect. 117, at 862 (5th ed. 1984). Second, the article
touched on several topics that are issues of general modern
public interest — a workplace liaison between an employee and
her superior, the subsequent disavowal of paternity and layoff of
the employee, and the possibility that a mother would be forced
to seek public assistance because the putative father refused to
give support. See The Florida Star v. B.J.F., 491
U.S. at 536-537 ("the article generally, as opposed to the
specific identity contained within it, involved a matter of
paramount public import"). Third, the focus of the column
was a judicial proceeding on a subject of inherent interest and
concern to the public. [8]See Cox Broadcasting
Corp. v. Cohn, 420 U.S. at 492-493; Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 839
(1978); Smith v. Daily Mail Publishing Co.,
443 U.S. at 103; The Florida Star v. B.J.F., 491
U.S. at 533; Perry v. E. Anthony & Sons,
353 Mass. 112, 114 (1967) (termination of libel suit matter of
legitimate public concern); Restatement (Second) of Torts
Sect. 652D comments f, g.

The plaintiff urges that
we treat G. L. c. 209C, Sect. 13, as a dispositive
legislative pronouncement that paternity proceedings are not
matters of legitimate public concern. That statute, as in effect
at the time of the publication of the article in question and as
amended through St. 1996, c. 151, Sect. 467, made docket
entries and other court papers connected with paternity
proceedings unavailable for public inspection unless ordered by a
judge for good cause shown. (The statute was inverted in 1998:
now such documents are available for inspection unless the judge
for good cause shown orders otherwise, or if the defendant is
adjudicated not to be the father. See St. 1998, c. 64,
Sect. 229.) The difficulty with this approach is the absence
in the record of evidence that Nathan unlawfully accessed court
records in preparing the news article. [9]The possibility
of such illegality is not enough to get the plaintiff past a
motion for summary judgment.

For the reasons set out
herein, the trial judge correctly ordered the entry of judgment
for the defendant Herald.

Judgment affirmed.

FOOTNOTES:

[1]News Group Boston, Inc.,
which was described in the complaint as the publisher of the
Boston Herald newspaper. The judge indicated in her decision that
News Group Boston, Inc., had changed its name to Boston Herald,
Inc., and that the two corporations were one. For purposes of
this decision we refer to both collectively as the Boston Herald.
Two other persons, Louise Gendron and Franklin H. Levy, were
originally named defendants. The record does not indicate what
happened to the claim against Gendron, but it does indicate that
in September, 1995, the plaintiff voluntarily dismissed the claim
against Levy. The judge in her decision stated that the Boston
Herald was the only remaining defendant.

[2]Peckham was designated as
a Certified Commercial Investment Member by the Commercial
Investment Real Estate Institute and a Certified Property Manager
by the National Institute of Real Estate Managers.

[5]General Laws c. 214,
Sect. 1B, as appearing in St. 1974, c. 193, Sect. 1,
provides that "[a] person shall have a right against
unreasonable, substantial or serious interference with his
privacy. The superior court shall have jurisdiction in equity to
enforce such right and in connection therewith to award
damages."

[6]The plaintiff would have
us respond to the argument by ruling instead that where the
"public interest in obtaining information substantially
outweighs the seriousness of any invasion of privacy, the
private interest in preventing disclosure must yield to the
public interest" (emphasis supplied). Jones v. Taibbi,
400 Mass. at 801, quoting from Attorney Gen. v. Collector
of Lynn, 377 Mass. 151, 156 (1979). However, that test
applies in the context of the privacy exemption to the public
records law, G. L. c. 4, Sect. 7, Twenty-sixth,
which embodies "a standard more favorable to nondisclosure
than G. L. c. 214, Sect. 1B," Pottle
v. School Comm. of Braintree, 395 Mass. 861, 867 n.6
(1985), quoting from Attorney Gen. v. School Comm.
of Northampton, 375 Mass. 127, 132 (1978). The former statute
does not apply to this case because judicial records are not
within its definition of "public records." See New
Bedford Standard-Times Publishing Co. v. Clerk of the
Third Dist. Ct. of Bristol, 377 Mass. 404, 407 (1979). We do
not view the reference to the "substantially outweighs"
test in Jones v. Taibbi, supra, a case
under the invasion of privacy statute, as departing from the
standard for such cases declared in the Restatement and quoted
with approval in George W. Prescott Publishing Co. v. Register
of Probate for Norfolk County, 395 Mass. 274, 278 (1985). The
failure of the plaintiff’s claim in the Taibbi case rested
primarily on the fact that the information at issue, the
plaintiff’s arrest, was a matter of public record and was thus
not a private fact. See 400 Mass. at 801.

[9]Even if we were to assume
— as we do not — that a faithless court employee divulged the
record, it is by no means clear, in light of The Florida Star
v. B.J.F., 491 U.S. at 536, that a newspaper that did not
participate in the illegality could be found liable for
publishing the information. The rule seems to be that "[i]f
a newspaper lawfully obtains truthful information about a matter
of public significance then [the] state . . . may not
constitutionally punish publication of the information, absent a
need to further a state interest of the highest order." Id.
at 533, quoting from Smith v. Daily Mail Publishing Co.,
443 U.S. at 103.

"To the extent
sensitive information rests in private hands, the government
may under some circumstances forbid its nonconsensual
acquisition, thereby bringing [the publication of the
information] outside of the Daily Mail principle . . .
." The Florida Star v. B.J.F., 491 U.S. at
534. There is nothing to indicate that Nathan acquired her
information "nonconsensual[ly]."

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